Justices: Freezing assets could deny right to counsel

Oct. 16, 2013
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Chief Justice John Roberts / Pablo Martinez Monsivais, AP

by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON -- Chief Justice John Roberts led a Supreme Court assault Wednesday against the government's increasingly common practice of freezing defendants' assets, arguing it can tie up the money needed to mount a proper defense.

The conservative Roberts was joined by several more liberal colleagues in denouncing the practice, raising the chances that the high court will reverse two lower federal courts and allow for pretrial hearings where defendants who risk asset forfeiture can challenge the evidence supporting their indictments.

The current grand jury process, Roberts said, is "not great insulation from the overweening power of the government."

But not all the justices were convinced of the need to alter the current criminal justice system and create a new layer, used in some regions of the country now, because defendants almost always lose their challenges. Justice Elena Kagan said such challenges were denied in all 25 hearings reviewed by her law clerks from the Second Circuit, which includes New York.

"What are we going through all this rigmarole for, for the prospect of, you know, coming out the same way in the end?" she asked.

And the Obama administration argued the interim hearings would force the government to try cases twice and risk losing any potential restitution for crime victims on attorneys' fees. Getting that money back if the defendant wins, Deputy Solicitor General Michael Dreeben said, "doesn't happen very often."

The case was brought by New York residents Kerri and Brian Kaley, who were charged in 2007 with stealing and reselling used prescription medical devices that had been discarded by hospitals. The government won court approval to freeze the couple's assets, including their home and a $500,000 certificate of deposit.

The Kaleys' challenge is based on several factors: that they didn't steal the medical devices, that their profits are not linked to the seized property, and that they cannot hire good lawyers without access to their money. They cite the 5th Amendment's due process protection against the loss of property and the 6th Amendment's guarantee of the right to counsel.

Federal appeals courts have split on the subject of such pre-trial hearings. Some allow defendants to challenge the evidence that led to the indictment. Others merely examine the link between the seized assets and the criminal charges. Still others do not allow the hearings at all.

Federal forfeitures, meanwhile, have grown from $94 million in 1986, when the Assets Forfeiture Fund was created, to $1.6 billion last year. "Under modern civil forfeiture laws ... filling law enforcement's coffers is often the primary purpose of the seizure," the conservative Institute for Justice argues in an amicus brief siding with the Kaleys.

It appeared to be an uphill battle, since a precedent-setting Supreme Court ruling in their favor would change a system that has relied on grand jury findings of probable cause to trigger indictments and criminal trials.

"We've been doing it for 1,000 years ... and it's hard to say that it violates what our concept of fundamental fairness is," Justice Antonin Scalia told the couple's attorney, Howard Srebnick. But Scalia suggested instead a rule that would prevent funds from being seized if they are needed to mount a defense.

He was not alone in appearing conflicted between the two sides. Justices Anthony Kennedy and Ruth Bader Ginsburg also appeared to be of two minds. And the remaining justices did not line up along typical partisan lines.

Opposing Roberts during most of the hour-long oral argument was Justice Samuel Alito, President George W. Bush's other nominee, who agrees with the chief justice more often than any of his colleagues. Alito said defense lawyers seek the hearings to learn details of the prosecution's case before trial; winning exoneration, he said, is "fantasy land for the most part."

Justices Stephen Breyer and Sonia Sotomayor lined up with Roberts. "Without a good lawyer, they're never going to make their case," Breyer said of the defendants. And even if their chance of getting an indictment tossed out at a hearing was "one in a million," Sotomayor told Srebnick, it "might be your case."